ex-MM2, USN 

Current Discharge and Applicant’s Request

Application Received: 20090818
Characterization of Service Received:    
Narrative Reason for Discharge:     INTO MILITARY
Authority for Discharge:    MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060222 - 20060329  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20060330	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20081217	Highest Rank/Rate:  MM2
Length of Service:   Year(s)     Month(s)   18 Day(s)
Education Level:  	AFQT:  97
Evaluation Marks:	Performance:  3.0 (4)	Behavior:  2.8 (4)	OTA:  2.98

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:       SCM:       SPCM:       CC:  

Retention Warning Counseling:  

- 20081107:	For being processed for administrative separation based on lack of disclosure and concealment of your medical conditions.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “ INTO MILITARY”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Substance Abuse:		Criminal Records:	
	Family/Personal Status:		Community Service:		References:	
              Additional Statements:
                             From Applicant:		From/To Representation:		From/To Congress member:	
                    Other Documentation:	

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Did not fraudulently enlist in the Navy.

Decision

Date:  20101027		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall    INTO MILITARY.

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and no misconduct that resulted in nonjudicial punishment or court-martial.  Per his Chronological Record of Medical Care (CRMC) dated 8 July 2008, the Applicant was diagnosed by a staff psychiatrist at the Naval Health Clinic (NHC) Hawaii, with occupational problem and avoidant personality disorder: traits, rule out personality disorder.  During this visit, the Applicant admitted to having been treated by a psychologist/psychiatrist for three to six months in 2004, was diagnosed with depression, was on medication (type unknown), and took the medication for about a month before stopping.  On his CRMC dated 10 July 2008, a staff psychologist at the NHC diagnosed the Applicant with depressive type psychosis (MDD), recommended submarine and nuclear field duty disqualification, and released the Applicant without limitations.  Per the Naval Submarine Support Command Undersea Medical Officer (UMO) Note dated 5 August 2008, the UMO noted that after the psychologist diagnosed the Applicant with MDD, he was referred to the psychiatrist for consideration of medication.  The psychiatrist disagreed with the diagnosis and no psychotropic medications were prescribed.  The UMO’s impression was the Applicant was not physically qualified for submarine duty and nuclear field duty by reason of depressive type psychosis, that a waiver of physical standards was not recommended, a medical board was not pending, the member was fit for full duty, and an interim (verbal) waiver was not requested from the Navy Bureau of Medicine and Surgery.  On 21 August 2008, the Submarine Pacific Force Medical Officer recommended approval of the request for disqualification of the Applicant from submarine and nuclear field duty in the Physically Not Qualified category, but noted he remains otherwise fit for full duty.  However, based on his failure to disclose his pre-service diagnosis of depression and consultation with a mental health professional, the Applicant’s command administratively processed him for separation.  When notified of administrative separation processing using the  procedure, the Applicant elected  rights to consult with a qualified counsel and submit a written statement, but waived his right to request a General Court-Martial Convening Authority review.

Issue 1:  (Decisional) ()  .  The Applicant contends he did not fraudulently enlist in the Navy.  On the Applicant’s Report of Medical History dated 13 February 2006, the Applicant marked “NO” to blocks 17e, f, and g, “Have you ever had or do you now have: e. Received counseling of any type, f. Depression or excessive worry, and g. Been evaluated or treated for a mental condition.”  As noted above, the Applicant admitted to having been treated by a psychologist/psychiatrist for three to six months in 2004, was diagnosed with depression, was on medication (type unknown), and took the medication for about a month before stopping.  In the Applicant’s statement, he noted that he did see a psychologist while a student at Baylor University but did not know [remember] if the psychologist made a diagnosis.  During his testimony, the Applicant discussed his guidance counseling, not mental health counseling, and that there was no diagnosis or medications that he was aware of while at Baylor.  Based on his testimony, the testimony of his witness, and service and medical records, the NDRB determined the Applicant did fraudulently enlist in the Navy and discerned no impropriety in the discharge action or inequity in the characterization of service, and a change in the narrative reason for separation would be inappropriate.

Summary:  After a thorough review of the available evidence, to include the Applicant’s testimony, testimony of his witness, summary of service,  and medical record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain  INTO MILITARY.

Since the Applicant elected a personal appearance hearing rather than a documentary review, he is not eligible for any further review by the NDRB.  The Applicant is directed to the Addendum, specifically the paragraphs titled Complaint Procedures and Additional Reviews.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023